Is the act of performing a spiritual marriage and encouraging that sex follow enough to find someone guilty of being an accomplice to rape?

It was in one of the cases seen as precedents for the prosecution of polygamous sect leader Warren S. Jeffs, who is charged with assigning an underage girl as a plural wife of a 28-year-old man despite her objections.

Jeffs, president of the Fundamentalist Church of Jesus Christ of Latter Day Saints, was arrested Monday in Las Vegas and is expected to be returned to Utah shortly to face the charge here, although authorities are not saying when.

In court filings, Washington County Attorney Brock Belnap refers to a series of Utah Court of Appeals rulings that upheld rape convictions of individuals who contributed to the sexual violation of the victim but did not commit the crime themselves.

Among those cases: That of John Perry Chaney, though the attorney who represented Chaney says the two cases are markedly different.

Chaney was convicted of being an accomplice to rape in June 1997 based on the spiritual marriage he performed between his 13-year-old daughter and Donald Beaver, then 48. Before conducting the "Patriarchal Marriage" ceremony, Chaney instructed the girl in her "marriage bed" duties, according to an appeals court opinion.

Also, the vows Chaney had the two exchange included references to having children.

Chaney claimed at his trial he expected the two would not engage in sex until the girl was at least 16, but the girl disputed that. She said her father's pre-marriage instructions were to "go as nature leads" and that "she couldn't be a little girl anymore."

In upholding Chaney's conviction, the appellate court said there was sufficient evidence that he knew the marriage would include sex. It also said Utah law clearly lays out the criminal liability of someone who "solicits, requests, commands, encourages, or intentionally aids another person" to commit an offense.

That language covers someone who drives the getaway car in a bank robbery or acts as a lookout while another commits a sexual assault.

The statute also states the accomplice must have the same mental state necessary to commit the crime - wording that could be key in Jeffs case.

"He would have to know and intend that nonconsensual intercourse would occur," said Rod Parker, a Salt Lake City attorney who has represented the FLDS church in the past.

Chaney was sentenced to six years to life and remains at the Utah State Prison in Draper. His first parole board hearing is set for June 2008.

Belnap also is relying on the precedent set in a case involving Joseph Robert Scieszka, a Bible study teacher.

Scieszka was convicted in 1995 of enticing a 14-year-old girl to engage in sex by telling her that God approved of their relationship. He later argued she had consented to sexual contact.

In upholding Scieszka's first-degree felony conviction, the appellate court said he had clearly used his faith and religious position to "overcome" a victim who "sought the approval of God in her daily life."

Belnap has referred specifically to wording in those decisions in describing the case against Jeffs, saying he "encouraged, commanded or intentionally aided" in the rape of the girl, identified only as "Jane Doe," who was between 14 and 18 when the marriage occurred.

In court documents, the victim alleges that Jeffs told her the union was "from God." During the ceremony, he instructed the couple to "multiply and replenish the earth and raise children in the priesthood."

She claims Jeffs later rebuffed her pleas to be released from the marriage, telling her that her salvation was at stake.

Randall K. Spencer, the Provo attorney who represented Chaney, said defense options were limited in his case because it involved a child.

"There will be more defenses available to Mr. Jeffs than were available to my client, like the issue of consent," Spencer said Friday. "In my case, she couldn't have consented."

But Belnap also argues consent is moot in the Jeffs case because of the age difference between the victim and the man to whom she was spiritually married.

Utah's rape statute says there is no consent if the age difference is greater than three years and the victim is enticed or coerced to participate, wording that protects minors from improper sexual coercion by adults, the appeals court has ruled.

Parker said the fact that alleged rape occurred a month after the pair were spiritually married could make proving coercion difficult. He also believes the state faces a challenge in distinguishing protected religious speech from coercive statements.

Spencer has handled several other accomplice-to-rape cases, all involving children.

The Jeffs case, he said, could hinge on whether the jury sees performing a marriage and encouraging procreation as aiding and abetting a rape. The fact that it was not a legal marriage may make a difference to the jury, he said.

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